July 11, 2014

Suing the President Can be Dangerous

Safe from losing the House Speaker position to Eric Cantor after Cantor lost his primary, John Boehner (R-OH) decided a new technique for controlling the radical conservatives who want to impeach the president. He’ll sue President Obama. The conservative base is all riled up and needs to be slightly calmed through a kind of relief valve. Boehner hopes that Tea Partiers will be satisfied with a lawsuit instead of full-blown impeachment.

When he proudly announced his grand plan over two weeks ago, Boehner had no reason for suing the President of the United States. To cover his lack of planning, he explained the suit was for “not faithfully executing the laws of our country.” He tossed out grandiose terms like “executive monarchy,” “imperial precedents,” and “aggressive unilateralism.”

Instead of being frightened of Boehner’s new strategy, President Obama has delineated the fallacy of being sued:

The president pointed out that the House has done nothing to help the country:

“The best you can say for them this year is that so far they have not shut down the government or threatened to have America welch on our obligations and ruin our credit rating. That’s the best you can say. But of course, it’s only July, so who knows what they may cook up in the next few months.”

The GOP members of the House have done nothing to boost the economy, help minimum-wage workers, extend unemployment insurance, address climate change, or reform the immigration disaster. Appropriations bills will probably not proceed because of the GOP goals to promote coal burning and stop the Clean Water Act. Talk of more stopgap spending bills shows a continuation of a dysfunctional Congress.

After pondering what excuse to use for a lawsuit against the president for over two weeks, Boehner came up with one of the weakest positions possible. The suit will be based on the president allowing businesses to wait for a year before implementing the Affordable Health Care, something that the GOP had voted for.

A danger of suing is that people will learn that President Obama has issued fewer executive orders than any other president since Franklin Roosevelt. The current president’s annual average of 33.58 executive orders is below any other president in 130 years; Chester Arthur averaged 27.7 orders each year. George W. Bush had 36.38, and Reagan topped 47.

Instead of complaining about Bush’s excessive use of executive orders, Boehner strongly supported Bush’s executive orders to prevent embryonic stem-cell research involving new embryos and to limit earmarks. The House Speaker even asked Bush to use an executive order to exempt a historic steamboat from safety regulations after Congress opted not to do so. In 2010, Boehner also asked President Obama to implement an executive order banning taxpayer funding for abortion in ACA.

The lawsuit will show that the president is actually something while the House is doing nothing. Democrats love the suit as much as the president. Drew Hammill, spokesman for House Democratic Leader Nancy Pelosi, wrote:

“Instead of working to create jobs, instead of working to strengthen the middle class or addressing any of the urgent issues facing our nation, Republicans are wasting taxpayer dollars on another toxic partisan stunt. This lawsuit is just another distraction from House Republicans desperate to distract the American people from their own spectacular obstruction and dysfunction.”

The lawsuit’s first public hearing is next week on July 16 in the House Rules committee. Within two weeks after that, it will go to the entire House for passage, just before the August recess. If all proceeds on schedule, the House’s lawyers take the complaint to the federal courthouse just as Congressional members head out to the campaign trail. Boehner hopes that the process will allow the conservatives’ calls for impeachment to fade.

Six years ago, Pelosi, then House Speaker, stopped her chamber from impeaching George W. Bush, assuming that this action would damage their party, anger swing voters, and galvanize the opposing party.

Boehner hopes that a simple lawsuit will also protect his party from the danger of impeachment. The question is whether he’s right. There’s always the possibility that someone farther to the right will introduce a resolution of impeachment and destroy his plans. House rules provide parliamentary privilege for this resolution, guaranteeing is a floor vote.

A serious problem for the lawsuit is proving that the House has standing. Boehner must prove that the House has been tangibly harmed by the president’s actions beyond a loss of political or institutional clout. The vast majority of lawsuits brought by members of Congress against the president on policy issues have been dismissed for lack of standing. Judges disapprove of these suits because Congress can constitutionally check the president’s power by making laws, restricting funding, or impeaching the president.

Recently, courts have been reluctant to loosen standing requirements. Justice Antonin Scalia wrote last year about the vast consequences of doing this. He imagined a system “in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress’s liking.” He added, “Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor.”

Another problem is that Boehner waited for over a year after the president took action. A judge may wonder why the House took so long for a lawsuit. In addition, the president’s action is for only a year and expires at the end of 2014, making the matter moot within less than six months.

Even the conservative Forbes writes that the lawsuit is a bad idea. Although the president’s popularity is now very high, Congress had a 9-percent approval in the most recent Quinnipiac University poll. According to David Davenport, a lawsuit is “like Ted Cruz trying to shut down the government, where the noise over his tactics was louder than the central point (does anyone even remember it was about healthcare?) he was trying to make.”

Another issue is the hypocrisy of Republicans looking for an activist judge to support them. Davenport wrote:

“Conservatism should not be content to pursue conservative ends by any means, but should consistently demonstrate a commitment to conservative means as well. As a consequence, pursuing an unprecedented legal attack on presidential power through the courts puts House Republicans right where they don’t belong, seeking a judicial solution to a political problem.”

For the first time in the history of the United States, a chamber of Congress is suing the president for “failing to enforce the law.” problem: Republicans won’t do their job, and they won’t let the president do his. We’ll see how that works out.